Citation Nr: 0633967
Decision Date: 11/02/06 Archive Date: 11/16/06
DOCKET NO. 98-17 792A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUES
1. Entitlement to service connection for a left knee
disorder, claimed as secondary to the service-connected right
knee disorder.
2. Entitlement to an increased rating for the service-
connected right patellectomy and meniscectomy, ligamentus
reconstruction right knee, currently evaluated as 30 percent
disabling.
3. Entitlement to an increased rating for the service-
connected degenerative arthritis of the right knee, currently
evaluated as 10 percent disabling.
4. Entitlement to a total disability rating based on
individual unemployability due to service-connected
disabilities.
REPRESENTATION
Appellant represented by: Alabama Department of Veterans
Affairs
ATTORNEY FOR THE BOARD
William J. Jefferson III, Counsel
INTRODUCTION
The veteran had active service from December 1968 to April
1971.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from rating decisions by a Regional Office (RO) of
the Department of Veterans Affairs (VA).
The issues of service connection for a left knee disorder
claimed as secondary to the service-connected right knee
disorder, an increased rating for the service-connected
degenerative arthritis of the right knee, and a total
disability rating based on individual unemployability due to
service-connected disabilities, are REMANDED to the RO via
the Appeals Management Center (AMC), in Washington, D.C.
FINDING OF FACT
The right patellectomy and meniscectomy, ligamentous
reconstruction right knee is productive of right knee laxity
or instability, and the veteran is in receipt of the maximum
schedular disability evaluation for severe recurrent
subluxation or lateral instability of a knee.
CONCLUSION OF LAW
The criteria for a rating in excess 30 percent for the
veteran's service-connected right patellectomy and
meniscectomy, ligamentous reconstruction right knee, have not
been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§
3.321 (b), 4.7, 4.71a, Diagnostic Code 5257 (2006).
REASONS AND BASES FOR FINDING AND CONCLUSION
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4.
The veteran is in receipt of a 30 percent disability
evaluation for right patellectomy and meniscectomy,
ligamentus reconstruction right knee under 38 C.F.R. § 4.71a,
Diagnostic Code 5257, other knee impairment, recurrent
subluxation or lateral instability. A 30 percent disability
rating is assigned for severe recurrent subluxation or
lateral instability of a knee.
VA O.G.C. Prec. Op. No. 23-97 (July 1, 1997), published at 62
Fed. Reg. 63,604 (1997) provides that a veteran who has
arthritis and instability of the knee may be rated separately
under Diagnostic Codes 5003 and 5257. The veteran is also in
receipt of a separate 10 percent disability evaluation for
degenerative arthritis of the right knee which does not
require discussion of disablement at this point because it is
the subject of the remand at the end of this decision.
The medical evidence shows the veteran has a long history of
right knee instability with multiple surgeries for right knee
repair. VA clinical records through 2004 reveal continued
knee complaints and symptoms. Radiographic studies revealed
deformity of the right menisci and old right knee tears or
post surgical changes. There were no fractures or
dislocations of the right knee.
At a VA medical examination of the joints that was performed
in February 2006, the veteran reported that he was unable to
work due to instability of his right and left knee, and pain.
The physical examination of the right knee revealed moderate
lateral laxity. The diagnosis was service-connected right
patellectomy and meniscectomy, ligamentous reconstruction
right knee.
Analysis
The medical evidence of record indicates that the veteran has
had multiple right knee surgeries and that he continues with
complaints of right knee instability. The veteran's right
knee disability is rated at the maximum 30 percent disability
evaluation for severe recurrent subluxation or lateral
instability under Diagnostic Code 5257. A higher rating is
not available under Diagnostic Code 5257.
The assignment of an alternative Diagnostic Code has been
considered, but the veteran's symptomatology, instability of
the right knee, is most appropriately rated under Diagnostic
Code 5257. For example, there is no medical evidence of
associated ankylosis of the right knee under 38 C.F.R. §
4.71a, Diagnostic Code 5256 or impairment of the tibia fibula
under 38 C.F.R. § 4.71a, Diagnostic Code 5262, both providing
a 40 percent disability rating or higher. As a result, use of
these codes would not be appropriate.
The Board observes in passing that under certain
circumstances additional disability could be awarded under
the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59. See
DeLuca v. Brown, 8 Vet. App. 202 (1995). Those circumstances
are not present in this case. In Johnston v. Brown, 10 Vet.
App. 80, 85 (1997), the Court determined that if a claimant
is already receiving the maximum disability rating available,
it is not necessary to consider whether 38 C.F.R. § 4.40 and
4.45 are applicable. Moreover, the Court has also held that
where a diagnostic code is not predicated on a limited range
of motion alone, such as Diagnostic Code 5257, the provisions
of 38 C.F.R. §§ 4.40, 4.45, and 4.59 do not apply. See
Johnson v. Brown, 9 Vet. App. 7, 11 (1996).
Additionally, the Board in reaching its decision, has
considered the assignment of an extraschedular rating under
38 C.F.R. § 3.321 (b). The Board is aware that the veteran
has reported that he is unable to work due to right and left
knee symptoms. The record contains no objective evidence
that the veteran's service-connected right knee disability,
in and of itself, has resulted in marked interference with
earning capacity or employment beyond that interference
contemplated by the assigned evaluation, or has necessitated
frequent periods of hospitalization. This case does not
present such an exceptional or unusual disability picture.
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
equipoise, with the appellant prevailing in either event, or
whether a preponderance of the evidence is against a claim,
in which case, the claim is denied. The preponderance of the
evidence is against the veteran's claim and the benefit of
the doubt doctrine is not for application here. 38 U.S.C. §
5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). An
increased rating for the service-connected right patellectomy
and meniscectomy, ligamentus reconstruction right knee, is
not warranted.
Duties to Notify and Assist
When a complete or substantially complete application for
benefits is filed, VA must notify the veteran of (1) what
information and evidence is needed to substantiate the claim;
(2) which information the veteran is expected to provide to
VA; and (3) which information VA will attempt to obtain on
the veteran's behalf. VA must also ask the veteran to submit
to VA any pertinent evidence in his possession. 38 C.F.R.
§ 3.159(b)(1) (2005).
The veteran's claim was initiated prior to promulgation of
laws contemplating notification and assistance to veterans.
In March 2004, VA sent a letter notifying the veteran of the
evidence necessary to establish an increased rating. The
veteran has been informed of what he was expected to provide
and what VA would obtain on his behalf, and asked him to
provide VA with any evidence he may have pertaining to his
appeal. The aforementioned letters satisfied VA's duty to
notify. Any defect with respect to the timing of the notice
requirement was harmless error. The veteran was furnished
content-complying notice and proper subsequent VA process,
thus curing any error in the timing. Pelegrini v. Principi,
18 Vet. App. 112 (2004).
VA also has a duty to assist the veteran in substantiating
his claim. The duty to assist contemplates that VA will help
the veteran obtain relevant records, whether or not the
records are in federal custody. 38 U.S.C.A. § 5103A (West
2002); 38 C.F.R. § 3.159(c), (d). Here, the claim file
contains the veteran's lay statements. VA has attempted to
obtain all records identified by the veteran. The veteran has
not notified VA of any additional available relevant records
with regard to his claim. The veteran has also been afforded
a VA medical examination to evaluate his service connected
right knee disorder. As such, VA met its duty to assist.
In light of the denial of the veteran's claim, no initial
disability rating or effective date will be assigned, so
there can be no possibility of any prejudice to the veteran.
Because VA's duties to notify and assist have been met, there
is no prejudice to the veteran in adjudicating this appeal.
ORDER
An increased rating for the service-connected right
patellectomy and meniscectomy, ligamentus reconstruction
right knee is denied.
REMAND
VA is required to notify the claimant and his or her
representative, if any, of any information, and any medical
or lay evidence, that is necessary to substantiate the claim.
38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2005); 38 C.F.R. §
3.159(b) (2006). In a March 2004 letter, the RO instructed
the veteran to disregard a previous notice letter that was
issued in August 2003. Review of the March 2004 RO letter
shows that while the issues on appeal are indicated, there is
no specific information regarding what is necessary to
substantiate his service connection claim based on secondary
service connection nor does it address information regarding
a claim based on an increased rating or a total rating based
on individual
unemployability due to service connected disabilities.
Proper notification of the issues on appeal is necessary for
due process purposes.
The VA duty to assist requires VA to provide a medical
examination that is based on a review of the evidence. In
July 2003, the Board remanded this case for among other
things, to obtain a VA orthopedic examination of the
veteran's right and left knees to determine the extent of
right knee disability and the etiology of his left knee
disability. Specific information regarding the requirements
of 38 C.F.R. § 4.40, 4.45. and 4.59 and any service connected
right knee weakened movement, including weakened movement
against varying resistance, excess fatigability with use,
incoordination, painful motion, pain with use, was requested.
The examiner was also requested to opine on any left knee
disability that was proximately due to or the result of the
service-connected right knee disorder.
A review of the record shows that a medical examination of
the joints was performed by a nurse practicioner in February
2006. The examiner essentially declined to specifically
address or opine on any right knee weakened movement,
including weakened movement against varying resistance,
excess fatigability with use, incoordination, painful motion,
pain with use. Further an opinion on the etiological
relationship, if any, between the veteran's service-connected
right knee, and his left knee disorder, was also not offered.
The medical evidence available for review in this case does
not appear to be sufficient in terms of providing proper
medical examination assistance to the veteran. Moreover, it
has been held that a remand by the Board confers on a
claimant, as a matter of law, the right to compliance with
the remand orders, and that the Secretary of Veterans Affairs
has a concomitant duty to ensure compliance with the terms of
the remand. Stegall v. West, 11 Vet. App. 268 (1998).
Additional medical information is required to properly
evaluate and adjudicate the veteran's several remaining
claims.
Accordingly, the case is REMANDED for the following actions:
1. The veteran must be provided notice of
what specific information and/or specific
medical or lay evidence is necessary to
substantiate his claims of direct and
secondary service connection for a left
knee disorder; an increased rating for the
service-connected right knee arthritis;
and a total rating based on individual
unemployability based on service connected
disabilities.
2. The veteran should be afforded a VA
examination of his right knee by an
orthopedist to ascertain the severity and
manifestations of his service-connected
disability. All necessary tests and
studies should be accomplished, but should
include complete range of motion findings;
complaints and clinical findings should be
reported in detail. The claims folder
should be made available to the examiner
prior to the examination for review of the
case. It should be indicated on the
examination report whether the claims file
was available for review by the examiner.
a) In accordance with 38 C.F.R. §§ 4.40,
4.45, VAOPGCPREC 36-97, and DeLuca v.
Brown, 8 Vet. App. 202 (1995), the
examination report must address any
weakened movement, including weakened
movement against varying resistance,
excess fatigability with use,
incoordination, painful motion, pain with
use, and provide an opinion as to how
these factors result in any limitation of
motion. The examiner should accurately
measure and report where any recorded pain
begins and ends when measuring limitation
of motion.
b) If the veteran describes flare-ups of
pain, the examiner should offer an opinion
as to whether there would be additional
limits on functional ability during flare-
ups, and if feasible, express this in
terms of additional degrees of limitation
of motion during the flare-ups.
c) Regarding service connection for a left
knee disability, the VA orthopedist is
requested to determine whether: It is as
least as likely as not (a 50% or higher
degree of probability) that any current
left knee disability is causally related
to any injury or symptomatology documented
in the service medical records? It is as
least as likely as not (a 50% or higher
degree of probability) that any current
left knee disability is proximately due
to, or caused by the veteran's service-
connected right knee arthritis disability?
It is as least as likely as not (a 50% or
higher degree of probability) that any
current left knee disability has been
aggravated by the veteran's service-
connected right knee arthritis disability?
A supporting rationale for the opinion
should be provided by the orthopedist.
3. Thereafter, the RO should review the
expanded record and readjudicate the
issues of entitlement to service
connection for a left knee disorder
secondary to the service connected right
knee arthritis; an increased evaluation
for degenerative arthritis of the right
knee; and a total rating based on
individual unemployability due to service
connected disabilities. The RO should
furnish the veteran and his representative
with an appropriate supplemental statement
of the case. The case should be returned
to the Board after the veteran is afforded
an opportunity to respond.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court
of Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
______________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs